Kagan nomination heads to full Senate

WASHINGTON — The Senate Judiciary Committee voted Tuesday to approve Elena Kagan’s nomination to the Supreme Court, clearing a key hurdle on her path to winning confirmation as just the fourth woman to ever serve on the high court.

Voting largely along party lines, 13-6, the committee sent her nomination to the full Senate for consideration this month or in early August. Sen. Lindsey Graham, R-S.C., who previously voted for President Barack Obama’s nomination of Justice Sonia Sotomayor, was again the only Republican on the panel to support Kagan.

“I think there’s a good reason for aconservative to vote yes,” Graham told his colleagues. He added that she was “smart ... and she’s funny, that goes a long way in my book.”

If confirmed, the nine member Supreme Court will have four Democratic appointees for the first time since 1971. And for the first time ever, three of the justices will be women, and none will be a Protestant.

In a more than two-hour meeting, committee Democrats and Republicans revisited many of the same themes from the hearings held in late June with Kagan, the current solicitor general. Republicans questioned her credentials and her lack of experience as a federal judge, and cited her decision, while dean of Harvard Law, to forbid military recruiters on the campus of one of the nation’s top law schools.

“She has deeply held liberal, progressive views,” said Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary panel. As a justice, he said, Kagan “will not be the objective, impartial arbiter and settler of disputes, but someone who would use the opportunity to redefine words to advance an agenda that’s not in the court’s role to advance.”

Democrats countered that Kagan’s legal background matched many past and current justices and defended her Harvard position by saying she was trying to walk the line of supporting the military and the university’s prohibition on discrimination in light of the “don’t ask, don’t tell” policy toward homosexuals serving in the military.

“It becomes more and more apparent that we need a return to the center and a justice who will urge moderation and who will push for consensus. Elena Kagan’s record gives me confidence that she could be just such a voice,” said Sen. Dianne Feinstein, D-Calif.

Much of the debate, however, focused not on her background but on the entire confirmation process that the committee employs for Supreme Court nominees. Kagan came under bipartisan condemnation for what the senators described as her “opaque and limited answers” and her game of “hide the ball,” the latest venting by a Judiciary Committee that is increasingly frustrated by its own system for vetting the nation’s most important judges.

“Too often we heard detailed explanations about the state of the law, but learned little more about what weight she would give to relevant precedent. The substance of her answers was so general at times that it would be difficult to distinguish her answers from those of any other nominee,” said Sen. Herb Kohl of Wisconsin, the second most-senior Democrat on the panel.

“It is possible to learn much about a nominee’s approach to judging without committing one to a specific position in future cases,” Sen. Jon Kyl, R-Ariz., said. “What we should expect, however, is candor and a willingness to honestly discuss background, general constitutional principles, approaches to judging, and writings and matters within the nominee’s background that bear on the nominee’s suitability for the bench.”

Kagan’s approach to Supreme Court hearings has been the norm since the 1987 nomination of conservative jurist Robert Bork turned into a high-profile battle over the nominee’s writings and rulings. Bork engaged the committee and jousted with the senators, and ultimately saw his nomination rejected by the full Senate. Ever since, both Republican and Democratic administrations have coached Supreme Court nominees to steer clear of detailed answers, refusing to weigh too heavily into any legal issue that could come before the court if he were to be confirmed out of fear of being accused of having prejudged the issue.

Sen. Dick Durbin, D-Ill., said the evasive answers are not surprising, echoing campaign statements that senators themselves trumpet. “This is an art form we have developed,” he said.

Graham warned that partisan politics is playing too large a role when considering judges.

“No one spent more time trying to beat President Obama than I did, except maybe Sen. McCain,” Graham said, referring to his work trying to elect Obama’s Republican rival in 2008. “I missed my own election. I voted absentee. But I understood - we lost; President Obama won. The Constitution in my view puts a requirement on me not to replace my judgment for his.”

Durbin said Graham had made him rethink his own approach to judicial nominations, including a move by Democrats several years ago that prevented Miguel Estrada, a prominent conservative lawyer and a good friend of Kagan’s, from having a hearing after President George W. Bush nominated him to a federal appeals court.

The Estrada filibuster remains a sore point with Republicans.

“I reflected on some of the things that I have said and how I have voted in the past, and thought that perhaps his statement suggested a better course,” Durbin said. He said he now believes “Miguel Estrada deserves a day in court or a day before the committee.”

Several Republicans believed to be potential supporters of Kagan’s said in brief interviews Tuesday that they had yet to decide whether to back her. They include Sens. Scott Brown of Massachusetts, Judd Gregg of New Hampshire and Olympia Snowe of Maine.

In the past, a president’s well-qualified nominees usually won an easy confirmation from the Senate. Justice John Paul Stevens, whom Kagan would replace, won unanimous approval from the Senate in 1975, even though Democrats had a large majority and he was a Republican nominee.

Justices Antonin Scalia and Anthony Kennedy also won on unanimous votes in the late 1980s. In the past decade, however, the Senate has split along party lines over Supreme Court candidates.

Obama shares part of the blame, Graham said. “Sen. Obama was part of the problem, not the solution,” he said.

Then an Illinois senator planning to run for president, Obama praised John Roberts, Bush’s nominee to be chief justice, as being exceptionally well-qualified. He nonetheless voted “no” on his nomination.

He also cast a “no” vote against Justice Samuel Alito, who was confirmed in 2006 with support from only four Democrats.

For Sen. Arlen Specter, DPa., it was likely the last Supreme Court hearing after 30 years in the Senate. He, too, fretted over the partisan division.

“I am sorry, but not surprised, to see the partisan split on his nomination because that reflects the ideological battleground that is going on the Supreme Court today.”

In the 1970s and early 1980s, several justices, including Potter Stewart, Byron White, Lewis Powell and Stevens, could not be easily labeled as liberal or conservative. Only Kennedy plays a similar role today, voting with the conservatives on some issues and the liberals on others.

Kagan’s nomination now moves to the full Senate, which is expected to take up the matter after an energy legislation debate that should begin next week. That makes a confirmation vote likely in the first week of August, before the Senate adjourns for a 5 1 /2-week break.

Information for this article was contributed by Paul Kane of The Washington Post, by David G. Savage of the Tribune Washington Bureau, by Julie Hirschfeld Davis and Ann Sanner of The Associated Press and by Sheryl Gay Stolberg of The New York Times.